[2022] KEELC 2309 (KLR)
The court found that the appellant's application to withdraw the appeal was meritorious, as the parties had settled the matter out of court. In line with the constitutional imperative to encourage alternative dispute resolution and the statutory duty to facilitate expeditious and just resolution of disputes, the...
Source-derived case information.
- Citation
- [2022] KEELC 2309 (KLR)
- Parties
- Appellant: Benard Otieno Obunga; Respondent: Lawrence Oguda Obunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 31 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Withdrawal of Appeal
- Outcome
- Appeal withdrawn with no order as to costs.
- Judges
- GMA Ongondo
- Legal Topics
- Withdrawal of Appeal, Out of Court Settlement, Ownership of Land, General Damages Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benard Otieno Obunga
Appellant
Lawrence Oguda Obunga
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Withdrawal of Appeal
Legal Issues
- 1 Whether the appeal should be allowed to be withdrawn following an out of court settlement.
- 2 Whether costs should be awarded upon withdrawal of the appeal.
Ratio Decidendi
The court found that the appellant's application to withdraw the appeal was meritorious, as the parties had settled the matter out of court. In line with the constitutional imperative to encourage alternative dispute resolution and the statutory duty to facilitate expeditious and just resolution of disputes, the court allowed the withdrawal of the appeal. No order as to costs was made, reflecting the consensual nature of the settlement and the absence of opposition from the respondent.
Court Disposition
Appeal withdrawn with no order as to costs.
Orders
- The appellant's withdrawal of the appeal is allowed.
- No order as to costs.
Full Case Text
Judgment text and source record
23 paragraphs
Obunga v Obunga (Environment and Land Appeal 31 of 2021) [2022] KEELC 2309 (KLR) (27 April 2022) (Ruling)
Neutral citation: [2022] KEELC 2309 (KLR)
Republic of Kenya
In the Environment and Land Court at Homa Bay
Environment and Land Appeal 31 of 2021
GMA Ongondo, J
April 27, 2022
Between
Benard Otieno Obunga
Appellant
and
Lawrence Oguda Obunga
Respondent
(Being an appeal from the ruling and orders of the Chief Magistrate Court at Homa-Bay law Courts (Hon. Maloba) delivered on the 25th day of September 2018 in land Case No. 6 of 2016)
Ruling
1. The appellant, Benard Otieno Obunga through the firm of Nyauke and company Advocates commenced the instant appeal by way of a Memorandum of appeal dated 25th March 2019 and lodged in court on even date. The same is anchored on the following grounds;a)The learned trial Magistrate erred in law and fact by finding that the plaintiff is the rightful proprietor of land parcel number East Kanyada/Kanyadier/3465. b)The learned trial Magistrate erred in law and fact in dismissing the plausible defence of the appellant and holding that the plaintiff proved his case on a balance of probability.c)The learned trial magistrate erred in fact by awarding the plaintiff general damages.
2. Wherefore, he prays that:a)This appeal be allowed and the orders of R.B.N Maloba (SRM) issued on 25th September, 2018, be set aside.b)Costs of this appeal and for the main suit be awarded to the appellant.
3. Mr. Owade learned Counsel for the respondent is aware of this date. He was in court on 2nd February 2022 when the parties through their respective counsel requested time to confirm the status of the proposed settlement. Today, the said counsel is absent without any reason.
4. Ms Odera learned counsel for the appellant has informed this court that the matter has been settled out of court. Therefore, she has sought to withdraw the appeal with no orders as to costs.
5. The application for the withdrawal of this appeal is made in the spirit of Article 159 (2) (b) and (c) of the Constitution of Kenya, 2010 and section 3 of the Environment and Land Court Act, 2015 (2011).
6. In the premises, I find that the appellant’s prayer has merit.
7. The net effect is that I hereby allow the appellant’s withdrawal of this appeal with no order as to costs.
DATED, DELIVERED AND SIGNED AT HOMA-BAY THIS 27TH DAY OF APRIL 2022. G.M.A ONG’ONDOJUDGEPresent:a) Ms Odera, learned counsel for the appellant.b) Terrence, Court Assistant.